RAJENDRA SAXENA, J. - (1.) THIS petition filed under Sec. 482 Cr. P. C. has been directed against the order dated 25-7-1986 passed by the learned Special Judge, Anti Corruption Cases, Udaipur in A. C. D. Case No 10/85 "state vs. Pannalal and Ors. " whereby he framed charges against the petitioners for the offences punishable u/ss. 409, 471, 420, 468 r/w 120-B IPC and Secs. 5 (1) (c) (d) r/w Sec. 5 (2) of the Prevention of Corruption Act, 1947, (in short, "the P. C. Act" ).
(2.) SUCCINCTLY stated the relevant facts arc that the Director, Animal Husbandry, Rajasthan, Jaipur sent a secret letter dated 30/12/1976 to the Addl. Inspector General of Police, Anti Corruption Department, Rajasthan, Jaipur, wherein he alleged that for construction of buildings & fish ponds by the Animal Husbandry Department, there is an office of the Assistant Engineer (Fisheries), which looks-after the said construction work and that for construction of buildings in Kapasan and Gauhari Distt. Bhilwara in the year 1974-75, cement bags were received directly from the Birla Cement Works, Chittorgarh. The said cement was given to the Contractors S/shri Noor Mohd. and Bhan-warlai and thus, there was no occasion for consigning the cement from Birla Cement Works, Chittorgarh to Central Stores, Jaipur and thereafter to send those cement bags to site of construction work. It was also mentioned in that letter that Shri P. N. Azad, Junior Engineer (Fisheries) submitted a duplicate copy of octroi Receipt No. 75361 dated 8/3/75 from Municipal Octroi Post, Sodala. Jaipur for an amount of Rs. 1760/-showing that truck Nos. HRJ 782 and RSM 6241 carrying cement bags, had passed through the said octroi post on 8-3-75; that it was found that truck No. HRJ 782 had gone on 8-3-75 from Food Corporation of India, Chittorgarh to Food Corporation of India, Udaipur to transport wheat bags and that it had transpired that Truck No. RSM 6241 did not come to Jaipur because there were no entries in the octroi posts of Bhilwara & Kishangarh. It was further mentioned therein that Shri P. N. Azad hatched a criminal conspiracy with M/s. Yadav Transport Company Chittorgarh and by fraud, withdrew an amount of Rs. 1760/- from Govt. Treasury as transportation charges for 440 bags of cement from Chittorgarh to Jaipur. It was also alleged therein that Shri Azad received a sum of Rs. 62. 50 by producing a false receipt of octroi post at Sodala, Jaipur and for 250 bags of cement having been brought by truck No. RJH 1095 also received an amount of Rs. 1003. 50 as transportation charges. On this information, Crime No. 1/77 dated 1-1-1977 was registered at Police Station, Anti Corruption Department, Jaipur u/s. 409 IPC and sec. 5 (1) (c) (d) and sec. 5 (2) of the P. C. Act against Shri P. N. Azad. However, after investigation the Sub Inspector, A. CD. , Chittorgarh, submitted a charge-sheet dated 22-8-85 against petitioner Sukhdev Vyas, who was the then L. D. C. , Stores, Fisheries Department, Jaipur, Pannalal the then Assistant Engineer, Fisheries Department, K P. Gupta Contractor, Ramswaroop Yadav Proprietor M/s Yadav Transport Company Chittorgarh and Omprakash of Yadav Transport Company for the offences u/ss. 409, 420, 468, 471 and 120-B IPC and under Sec. 5 (1) (c) (d) r/w sec. 5 (2), P. C. Act in the Court of Special Judge, A. C. D. Cases, Udaipur. Alongwith charge-sheet, sanction for prosecution against the petitioner and Shri Pannalal was also filed. It was mentioned in the charge-sheet that on investigation, it was found that on 8-3-75. delivery of 440 bags of cement was taken from Birla Cement Works, Chittorgarh and those bags were directly sent to Kapasan and Gauhari Distt. Bhilwara; that in fact those bags of cement were never transported to Jaipur through truck Nos. RSM 6241 and HRJ 782 and a forged octroi receipt from Sodala Octroi outpost was issued for an amount of Rs 110/- as octroi fee. It was also found that on 8-3-75 and 9-3-75, truck No. HRJ 782 had transported the wheat consignment from Food Corporation of India, Chittorgarh to F. C. I. , Udaipur in two rounds and, as such, it was physically impossible for the said truck to have gone to Jaipur on 8-3-1975. It was also found that Shri K. P. Gupta, Contractor, had procured the said octroi receipt and received an amount of Rs. 110/-from the Govt. Treasury. Though in the relevant F. C. I. bill dated 17-3-75, it was mentioned that the said amount was received by Shri P. N. Azad on 19. 3. 75, whereas the latter was out of station on tour on that day. However, the said payment was verified in the cash book by Shri Pannalal, Asstt. Engineer. After investigation, it was also found that in the measurement book, it was mentioned that 440 bags of cement were brought from Birla Cement Works, Chittorgarh to Jaipur and transportation charges thereof amounting to Rs. 1760/- were drawn by the F. C. I. bill dated 17/3/75 and it was mentioned in the case book that the said amount was paid to Shri P. N. Azad on 19-3-75 while on that day, he was out of headquarters on tour. It was also found that the petitioner Sukhdev Vyas made an entry of 440 bags of cement in the stock Register of Fisheries Department Jaipur, which was verified by co-accused Pannalal, Asstt. Engineer while infact the said consignment of cement was not transported to Jaipur. It also transpired from the investigation that petitioner and the aforementioned accused persons had entered in to a criminal conspiracy for putting the Govt. to a wrongful loss rendering unlawful and wrongful gain to the said contractors to make forged entries in the stock registers, to procure forged octroi receipts, to prepare forged bills and to misappropriate the Govt. amount. As regards P. N. Azad, a report under Sec. 169 Cr. P. C. was filed on the ground that there did not exist valid and sufficient grounds to connect him with the said crime. As against Daulat Singh, no charge-sheet was filed because the necessary sanction for prosecution was not granted by the department, though he was found guilty by the Investigating Agency. Public Prosecutor filed an application before the learned Special Judge for taking cognizance against Shri P. N. Azad, Junior Engineer on the ground that there was cogent and material evidence on record against him. The learned Special Judge vide his order dt. 25-7-1986 did not accept the report under Sec. 169 Cr. P. C. filed by the Investigating Officer and observed that he did not find any substance and ground to accept such report as the same lacked inherent logic as well as belief to see that there existed no grounds against Shri P. N. Azad. The learned Special Judge also observed that on the other hand, there were sufficient grounds and ample documentary & oral evidence to proceed against Shri Azad and directed the Investigating Officer to seek necessary sanction under Sec. 6 of the P. C. Act to proceed against Shri P. N. Azad. It may be mentioned here that no such prosecution sanction has been granted by the State Government as yet. After hearing the arguments, the learned Special Judge by his detailed order dt. 25/7/86 found that there existed valid grounds to believe that the petitioner and other co-accused persons had committed aforementioned offence and, therefore, he framed the charges against the petitioner for the said offence and recorded his plea, wherein he pleaded not guilty and claimed trial. Hence this petition. I have heard learned counsel for the petitioner end learned P. P. at length and carefully perused the record of the lower Court in extenso. Mr. Singhi learned counsel appearing for the petitioner, has vehemently contended that no offence whatsoever is made out against the petitioner Sukhdev Vyas because Shri P. N. Azad, Junior Engineer, was the Incharge of purchase and stock of cement and had full control over the stores as the keys were kept with him. According to him, Shri Azad was also looking after the receipt and issue of cement and that the record of stock of cement was also being kept by him and that on the basis of the said record, petitioner, who was L. D. C. , prepared the stock register of the Head Office. Mr. Singhi has contended that from 8-3-75 to 13-3-75, petitioner was on tour alongwith Shri Pannalal, A. En. and was out of Headquarter and that on his return on 14/3/75 on the basis of the record maintained by Shri Azad, petitioner also made entries of the receipt of 440 bags of cement in the stock register, which was issued by Shri Azad on 17-3-75, According to him, Shri Azad was authorised to receive the cement from the Birla Cement Works, who had signed over the gate-pass of the disputed consignment of 440 bags of cement from the factory, that Shri Azad also verified the transportation bill of M/s Yadav Transport Company on 8-3-75 and received an amount of Rs. 1760/-, which stands corroborated from the entries made by Shri Azad in the measurement book on 8-3-75. According to him, all these documents reflect that Shri P. N. Azad had fabricated the record with an intention to misappropriate the Govt. amount but he was not charge-sheeted. Thus, the investigation has not been fair towards the petitioner which amounts to gross injustice to him and, as such, the proceedings launched against him deserve to be quashed. He has also contended that the petitioner had no complicity in commission of the aforesaid offence and he has been falsely dragged in this case by the Investigating Agency with an ulterior motive to save Shri Azad. Therefore, it will be just and proper that proceedings against him pending before the trial Court should be dropped, closed and quashed. Mr. Singhi has placed reliance on the case of Tafazul Hussain vs. The State of Rajasthan wherein it was held that in case there are more than one offenders and one of them is not prosecuted, ordinarily there would not be any justification for proceeding against the remaining accused. It was further observed that that would not however mean that in every case the non-prosecution of one alleged offender would bar the prosecution of the rest. It would depend upon the nature of accusation and the material available against each of them. It was further observed that if the person mainly or equally responsible for an act is let free then there cannot be any justification for taking action against the rest- On the other hand, Shri K. L. Thakur, learned P. P. , has stoutly opposed this petition and reiterated the reasonings given be the learned Special Judge.
(3.) I have given my most earnest consideration to the rival submissions. A bare perusal of oral and documentary evidence collected by the Investigating Officer prima facie shows that the consignment of 440 bags of cement alleged to have been transported from Birla Cement Works, Chittorgarh to Central Store of Fisheries Department, Jaipur in the aforementioned two trucks, was actually not brought to Jaipur nor the same was delivered in the Central Store of Fisheries Department, Jaipur. It is not in dispute that petitioner Sukhdev Vyas was the Store Keeper, Central Store of Fisheries Department, Jaipur and used to maintain the stock register. Petitioner vide para 3 of his petition filed under sec. 482 Cr. P. C. has specifically pleaded that he was working as Lower Division Clerk and was required simply to make entries in the register kept at the head office in accordance with the records of the Junior Engineer, who was keeping the stores and having physical control over the material. Thus, he has admitted that in the stock register, he had made entries regarding receipt of 440 cement bags from Birla Cement Works, through Shri Anant Kumar 240 bags and through Shri Bhanwarlal 200 bags on 14-3-75. It has also been mentioned in the said entries that those bags were received through Shri P. N. Azad. Again on 17-3-75, those 440 bags of cement have been shown issued to Shri P. N. Azad. It has nowhere been mentioned in the said entries of the stock register that those were made on the basis of the measurement book or record maintained by Shri P. N. Azad. If the said consignment of the cement bags was not actually received in the store, there was no occasion for the petitioner to have mentioned those entries in the stock register. This manifestly reflects that the petitioner prima facie had complicity with other co-accused persons in commission of the offence for which charge has been framed against them. Prima facie the offence of entering into a criminal conspiracy and making forged entries in the stock register stands firmly established. The contention of Mr. Singhi that petitioner was out of head quarter along with co-accused Pannalal, Asstt. Engineer, from 8-3-75 to 14-3-75 and that he had made entries in the stock register on the basis of the record maintained by Shri P. N. Azad and, as such, he had no complicity with the co-accused persons, appears to me devoid of any force & substance. In the charge-sheet, it has been alleged that the amount of transportation charges and the octroi of the consignment of cement bags, was ultimately received by co-accused Ramswaroop Yadav and Omprakash of M/s Yadav Transport Company. This is true that the learned Special Judge has found sufficient evidence against Shri P. N. Azad and, as such, he directed the Investigating Officer to seek necessary prosecution sanction under Sec. 6 of the P. C. Act but the State Govt. has not granted any prosecution sanction. Simply because, no challan has been filed against Shri P. N. Azad, who also appears to be an accused of the alleged offence, petitioner cannot claim exoneration/discharge for the offence for which he has been charged by the learned Special Judge. I have carefully gone through the Tafazul Hussain's case (supra ). In that case, the petitioner was charge-sheeted u/ss. 409, 420, 465 & 468 IPC by the learned Chief Judicial Magistrate in connection with the famine relief work for nursery in the year 1973. A complaint was filed by two persons before the Anti Corruption Department, Chittorgarh against Dhruv Narain, the then Block Development Officer alleging that a false document in the form of muster roll was prepared and irregularities were committed in the work. The petitioner was an Overseer concerned with that work. The matter was investigated and sanction for prosecution of the said B. D. O. was sought from the Government but the same was refused on the ground that though irregularities were evident in construction work, no case of any embezzlement was made out and that the ingredients of dishonesty in committing irregularities in the form of using trucks instead of engaging labour for transporting the construction material was lacking in the case. The Investigating Agency was of the opinion that no case is made out against the B. D. O. and the Overseer and, as such, a final report was filed in the Court on 25-5-81. The learned Magistrate vide his order dt. 16-6-81 considered it to be a fit case in which the charge-sheet against Dhruv Narain, B. D. O. , and Tafazul Hussain, Overseer, should have been filed and, as such, did not accept the final report and returned the papers to the S. H. O. , Police Station Gadi on July 10, 1982 for compliance. After two years on 27. 07. 1983, the police filed a challan against petitioner Tafazul Hussain only. Petitioner raised objection about the competence of the court for taking cognizance against him. The Magistrate, however, negatived the plea against Tafazul Hussain and took cognizance against him. Against, that order, petition under Sec. 482 Cr. P. C. was filed in this Court for quashing the order about taking cognizance. In that case, police did not further investigate into the matter and in compliance of the Magistrate's order filed a charge-sheet against Tafazul Hussain. It was held that after the final report had been filed, there remained nothing with the police to comply and directed that the final report may be sent to the S. H. O. for compliance. Without further investigating into the matter and without there being any additional material available, filing of the charge-sheet against the petitioner after two years amounted to abuse of the process of the Court. Another contention raised on behalf of the petitioner was that when the main accused in the case viz Dhruv Narain, B. D. O. , had not been prosecuted for want of prosecution sanction on the ground that no criminal case was made out, there was no justification for prosecuting the petitioner who was acting under the supervision and direction of the B. D. O. In such circumstances it was held by this Court that when there are more than one offenders and one of them is not prosecuted ordinarily, there would not be any justification for proceeding against the remaining accused but that would not however mean that in every case, the non-prosecution of one alleged offender would bar the prosecution of the rest. It was further observed that it would depend upon the nature of the accusation and the material available against each of the persons and if the person mainly or equally responsible for an act, as was in that case, was let free then there could not be any justification for taking action against the rest. Apparently, the facts of the case in hand are clearly distinguishable with the facts of that case. As per charge-sheet since the amount of transportation charges and the octroi was received by other co-accused persons and not by Shri P. N. Azad, it cannot be said that Shri Azad was the main accused. "no doubt, there existed sufficient evidence to prima facie believe that Shri Azad was also a conspirator in the criminal conspiracy to cheat and defraud the Government and to misappropriate the amount entrusted to him. But since, no prosecution sanction has been granted by the State Govt. under Sec. 6 of the P. C. Act, the learned Special Judge is precluded from taking cognizance against him. However only for that reason, the petitioner, against whom there existed valid and sufficient reasons to believe that he had also entered into the criminal conspiracy and made forged entries in the stock register, cannot claim his exoneration or discharge from the said offence. As mentioned earlier besides petitioner, there are four other co-accused persons who have been charged by the learned Special Judge for the said offence. In such circumstances, Tafazul Hussain's case (supra) does not render substantia) assistance to the petitioner. The learned Special Judge framed the charge on 25. 7-86 and the petitioner has filed this petition after about two years i. e. 13-9-1988. Therefore, it cannot be said that the proceedings in this case have been protracted by any lapse of the prosecution agency. On the other hand, petitioner is responsible for the delay in the trial of the case. The learned Special Judge has given detailed reasons for framing charge against the petitioner which are based on record. In my considered opinion, it is not a case of no evidence as against the petitioner. To my mind, the impugned order dated 25/7/1986 is perfectly legal, proper and justified and the same does not tantamount to any abuse of the process of the Court and does not warrant any interference. ;